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Commerce Asks Judge to Dismiss Remaining FirstNet Suit Count

The Commerce Department today asked a federal district judge in Vermont to dismiss the remaining count in a Freedom of Information Act (FoIA) lawsuit seeking First Responder Network Authority (FirstNet) records. “For the above reasons, this Court should dismiss Count 18 for lack of jurisdiction because Plaintiffs do not have standing,” Commerce said in a supplemental brief filed in “Stephen Whitaker and David Gram v. Department of Commerce,” (case 5:17-cv-192). “In the alternative, if this Court finds that Plaintiffs have standing, this Court should grant summary judgment to DOC on the grounds that FirstNet’s collection of names of the Portal users (together with the name of their employing agency, their title, the email issued them by their employing agency and mobile phone number) for the purpose of creating their accounts for the Portal did not violate Section 208 of the E-Government Act.”

Last month, Judge Geoffrey W. Crawford granted a motion to dismiss or grant summary judgment in favor of the government on all but one of 18 counts in the FoIA lawsuit (TR Daily, Jan. 2).

On the last count, the judge reserved making a decision on summary judgment pending a supplemental briefing. The count “requests injunctive relief prohibiting FirstNet from collecting personally identifiable information until proper privacy impact assessments are complete,” the judge noted in his Dec. 20 decision.

In the brief filed today, Commerce noted that Count 18 argues that Commerce “violated Section 208 of the E-Government Act of 2002 … by failing to conduct and publish a Privacy Impact Assessment (‘PIA’) for the First Responder Network Authority’s (‘FirstNet’s’) State Plan Portal. Specifically, this Court directed DOC to address the following questions: (1) whether FirstNet’s collection of Portal user information in the form of Excel spreadsheets via email, as described in the Declaration of Brian Hobson [of FirstNet], was a collection of information subject to the privacy impact assessment requirements of Section 208; (2) whether and how the Defendant complied with those requirements, and (3) what remedy would be appropriate if Defendant had not complied.”

“As demonstrated below, the Court need not rule on any of these questions because Plaintiffs have no standing to challenge whether DOC violated Section 208,” Commerce added. “Plaintiffs have no standing because their personal information is neither collected, maintained, nor disseminated, either on the Portal or outside the Portal, by DOC or by any entity in association with FirstNet’s operation, and therefore they have not suffered any injury. However, if the Court were to reach the merits of these questions, it should hold that there was no violation of Section 208 because there was no ‘collection of information’ subject to the Act, and furthermore an appropriate PIA was conducted and published by the Defendant even if there was a ‘collection of information.’”

It added that FirstNet’s publication of a General Support System PIA satisfied any section 208 mandate that would be applicable to the collection of user identification information on the portal.- Paul Kirby, paul.kirby@wolterskluwer.com